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Monday, December 06, 2004

I keep seeing this same excerpt repeated over and over again in all of the mainstream press reports. It is an Associated Press release:

Two major challenges were expected to unfold today even as the secretary of state was ready to certify the final results.

First, lawyers representing voters upset about problems at the ballot on Election Day plan to contest the results with the Ohio Supreme Court. They will cite documented cases of long lines, a shortage of machines and a pattern of problems in predominantly black neighborhoods.

In addition, third party candidates, bolstered by a favorable federal court ruling, plan to file requests for a recount in each of Ohio's 88 counties.

Observers don't give either effort much hope.

"It's an incredible long shot," said Steven Huefner, an Ohio State University law professor. "Courts are just incredibly reluctant to overturn the results of an election absent a really strong showing that something happened that affected the outcome."

First of all, the professor from Ohio State University is referring to the possible "invalidating" of the Ohio election results by the courts. However, AP continues to link this comment with the recount effort. That is a glaring mis-truth.

If the Ohio recount shows Kerry pulling ahead of Bush, then the Ohio courts (as far as I understand) have nothing to do with overturning the official results certified on December 13. This would be a matter for congress to deal with.

In fact, Keith Olbermann had a constitutional law professor, named Jonathon Turley, on his show way back on November 9 talking about such a scenario (a reader has provided a link to a part of the U.S. constitution that explains this process here). This is his Turley's response, as written on Keith Olbermann's blog on November 21:

He [Turley] noted the election process is a little slower— and has one more major loophole— than is generally known. It begins on December 7th, the date “when you essentially certify your electors… it gives a presumption to the legitimacy to your votes. And then, on the 13th, the electors actually vote.”

But, Turley noted, “those votes are not opened by Congress until January 6. Now, if there are controversies, such as some disclosure that a state actually went for Kerry (instead of Bush), there is the ability of members of Congress to challenge.” In other words, even after the December 13th Electoral College Vote, in the extremely unlikely scenario that a court overturns the Ohio count, or that the recount discovers 4,000 Gahanna-style machines that each recorded 4,000 votes too many for one candidate, there is still a mechanism to correct the error, honest or otherwise.

“It requires a written objection from one House member and one senator,” Turley continues. Once that objection is raised, the joint meeting of the two houses is discontinued. “Then both Houses separate again and they vote by majority vote as to whether to accept the slate of electoral votes from that state.”

In these super-heated partisan times, it may seem like just another prospective process decided by majority rule instead of fact. But envision the far-fetched scenario of some dramatic, conclusive new result from Ohio turning up around, say, January 4th. What congressman or senator in his right mind would vote to seat the candidate who lost the popular vote in Ohio? We wouldn’t be talking about party loyalty any more - we’d be talking about pure political self-interest here, and whenever in our history that critical mass has been achieved, it’s been every politician for himself (ask Barry Goldwater when Richard Nixon trolled for his support in July and August, 1974, or Republican Senator Edmund Ross of Kansas when his was to be the decisive vote that would have impeached President Andrew Johnson in 1868).

The point of this dip into the world of political science fiction is that the Ohio timeframe is a little less condensed than it seems. The drop-dead date is not December 13, but January 6.

FOOTNOTE: Joseph Cannon of Cannonfire found some interesting information about AP, written by Lynn Landes:

Who is the AP? The Associated Press was founded in 1848. It is a not-for-profit news cooperative, some would say ‘monopoly’, that rakes in about $500 million dollars a year. The AP is owned by its 1,500 U.S. daily newspaper members. Their board of directors is elected by voting ‘bonds’. However, it is not clear who controls the bonds. AP spokespeople would not give out information on who sits on their board, however AP leadership appears quite conservative.

Burl Osborne, chairman of the AP board of directors, is also publisher emeritus of the conservative The Dallas Morning News, a newspaper that endorsed George W. Bush in the last election. Kathleen Carroll, senior vice president and executive editor of AP, was a reporter at The Dallas Morning News before joining AP. Carroll is also on the Associated Press Managing Editors (APME)’s 7-member executive committee. The APME "works in partnership with AP to improve the wire service's performance," according to their website. APME vice president, Deanna Sands, is managing editor of the ultra conservative Omaha World Herald newspaper, whose parent company owns the largest voting machine company in the nation, Election Systems and Software (ES&S).